Why did death penalty repeal fail in California?
Examining the California SAFE Act
Proposition 34 (or the SAFE Act), the ballot measure that would have replaced the death penalty in California with life without parole (LWOP), was narrowly defeated there on November 6, 2012. A de facto moratorium remains in place as the courts in California continue to wrestle over the state's execution protocol.
53% of people voted against the measure, with 47% voting in favor. This is a far cry from the 70% of people that were in favor of reinstating the death penalty in California in 1978. The significant shift in public opinion against the death penalty is incredibly encouraging for abolitionists both nationally and in California.
At the same time that Californians voted to keep the death penalty, a larger percentage of them also voted to reduce the harshest punishments associated with the "three strikes" law.
With the clear and significant decline in support of the death penalty in California, and with voters choosing to soften the harsh penalties in "three strikes" law, what caused the SAFE Act to fail?
One obvious reason was the rallying of staunch supporters of capital punishment against the measure, despite the SAFE Act being written in such a way as to appeal especially to those groups. The attempt to placate law enforcement and victims' rights advocates with tough on crime language and offers of more funding were ultimately unsuccessful.
This strategy also ignored many key groups of activists that could have rallied enthusiastically behind another kind of measure. The sponsors of the SAFE Act simply did not put forward an initiative based on principled human rights that progressive abolitionists and prison reform fighters could unite behind.
The Campaign to End the Death Penalty (CEDP) has been critical of the conservative approach taken by abolitionists in the handful of states that have recently abolished the death penalty. In the case of the California measure, the CEDP said this in a statement released in late October:
"The California measure is in many ways similar to the legislation that has passed in states across the country, and especially the recent death penalty repeal in Connecticut. Life without parole (LWOP) has been promoted as the just alternative to the death sentences, and tough on crime and cost-cutting language has been put at the forefront of the public campaign in favor of the initiative."
The focus on "budget savings" was at the heart of the campaign waged by proponents of the SAFE Act. The idea was that during a time of severe budget crisis, ordinary Californians would be looking to root out "innefficient" government spending such as the expense associated with the death penalty. For many people, however, these cold financial calculations are not what challenges their position on the death penalty. As Texas death penalty defense lawyer David Dow argued in a recent article:
"Economic arguments matter at the margins, but at its core, the debate over the death penalty is never really about dollars and cents—rather, it turns on our idea of what it means to be a human being."
A big part of the argument for cutting costs and staying tough on crime was the championing of life without parole as a just alternative to the death penalty. On its website, the authors of the SAFE Act explain that "This means convicted killers will remain behind bars forever – with no risk of executing an innocent person."
What is not said is that those innocent people that are on death row are now serving a life sentence without the possibility of parole. Because LWOP does not have the guaranteed state funded appeals that come with a death sentence, prisoners are left with very little means to prove they are innocent. But for proponents of the SAFE Act, this means the elimination of "costly" appeals. Again from the SAFE website: "Money for the SAFE California Fund comes directly from closing three state agencies that currently handle expensive and extensive appeals for death penalty cases."
Access to appeals is especially important in California, which has over 700 people on its death row, many who have yet to have a lawyer assigned to the habeas corpus proceedings that follow their direct appeals to the state. The prospect of serving an LWOP sentence, without access to appeals, is what prompted many death row prisoners in California to speak out against Proposition 34.
The CEDP was the only group to directly contact death row prisoners about the SAFE Act, sending over 220 California death row prisoners asking for their thoughts. Of the 60 or so responses, only four prisoners wrote in favor of the act. Prisoners were most concerned about their access to appeals.
Death row prisoner Kevin Cooper has exhausted his appeals despite the mountain of evidence that points to his innocence, and is in line for execution when and if they resume. In his statement about the SAFE Act, Kevin decried the fact that the sponsors of the bill had failed to reach out to prisoners, and he discussed his opposition to LWOP, because of the lack of access to appeals and because of the inhumane nature of this harsh sentence. As Kevin stated:
"Please don’t get me wrong, as I have my say concerning this SAFE California Act. I am not ‘for’ Capital Punishment either! But, I do know that there has be a better way to end Capital Punishment within this state than the SAFE California Act."
Another disheartening facet of the campaign for the measure was the appeal to law enforcement, in particular through a fund that would have funneled millions of dollars directly to police and prosecutors in an effort to "prevent" crime. The CEDP lambasted this tactic in its recent statement on the SAFE Act:
"Putting more money into law enforcement’s hands in order to “save lives” is one of the most backwards parts of the SAFE Act. It’s hard to imagine that the families of Alan Blueford, James Earl Rivera Jr., or Oscar Grant (all innocent men of color killed by police in California) would feel safer with more police on the streets.
Law enforcement and prosecutors are on the front lines of what Michelle Alexander calls the “New Jim Crow” which is responsible for locking up 2.3 million people behind bars, disproportionately African-Americans and Latinos. We want to end this injustice, not help strengthen it."
Some abolitionists have argued that the conservative strategy of appealing to law enforcement and talking about the costs of maintaining the death penalty is what has swayed legislatures to repeal the death penalty in a handful of states. But the fight against the death penalty is not won in the halls of power through back room discussions assuring law makers of abolitionists' commitment to be tough on crime, nor through cold political calculations at the level of the ballot box.
This kind of thinking leaves aside the fact that both lawmakers and the general public have been hugely affected by questions of innocence, as exemplified by the battles against executions in high profile cases like those of Stan Tookie Williams in California and Troy Davis in Georgia.
Innocence is the biggest factor in the decline of support for the death penalty nationally over the last 10 years. Dozens of people have been exonerated from death row and from prison, and polls show that most people believe that innocent people have been and will continue to be executed.
The recent release of Anthony Graves from Texas death row, and the scandal surrounding executed prisoners in Texas like Cameron Todd Willingham, falsely accused of setting an arson fire that killed his three children, have had a massive impact on the death penalty debate. Innocence was also determining factor in the abolition of the death penalty in Illinois in 2010, and was at the center of the struggle to save the life of Troy Davis in Georgia in 2011.
The Troy Davis case also shined a spotlight on the pervasive racism endemic in the death penalty and the whole justice system. Racism plays a huge role in how innocent people land on death row. For example in Illinois a police torture ring specifically targeted black men in Chicago, resulting in dozens of false confessions. The fight to save the prisoners known as the Death Row 10 and other police torture victims led to the 2000 moratorium by then-Governor George Ryan and to the pardon of four members of the Death Row 10.
It is these kinds of struggles around innocence and against racism and police and prosecutorial misconduct that will ultimately galvanize the whole abolitionist community. Abolitionists and justice system reform activists in California could have united together around a measure that took up these issues and that put prisoners, former prisoners, family members of prisoners and victims in the front lines of a campaign against the death penalty.
We have seen the impact that campaigns around single cases can have on the way that people view the death penalty. It is fights like the movement for justice for wrongfully executed prisoner Stan Tookie Williams in California that show us the way forward in our struggle.
Going forward, the fight to prove Kevin Cooper's innocence should be a centerpiece campaign for those in California who want to continue the struggle for abolition, as well as other death penalty cases like those of Darrell Lomax and Correll Thomas. Uniting the abolition movement with struggles against racism and for reform in the criminal justice system is also key.
California activist Cameron Sturdevant summed it up this way on the day after the election:
"To end the death penalty in California, the abolition movement needs to put the fight for humanity at the center of the struggle; recognizing that the death penalty is racist, it kills the poor, it condemns the innocent, it's cruel and unusual, and the death penalty doesn't deter crime. The best lesson to take from the defeat of Prop 34 is that the movement must put fighting the racism of the death penalty at the heart of the struggle, not budget 'savings.' The worst lesson would be to continue the bad strategy of the just concluded 'yes on 34' campaign that embraced a lock 'em up, penny-pinching, law-and-order, right-wing 'framing' of the issue. I am unalterably opposed to the death penalty and I look forward to continuing the fight to end it."
Uniting the death penalty movement with fights against harsh punishments like LWOP, against barbaric prison conditions, racism, police brutality, the war on drugs and mass incarceration will not only broaden our movement. It could inspire a new generation of activists to take up a principled cause for social justice.
In the end, our movement is not simply about ending the death penalty. It is about fighting against injustice and for the humanity of all people, whether behind bars or not. Winning abolition is our goal, but our fight doesn't end there. As Martin Luther King said, "Injustice anywhere is a threat to justice everywhere" and that includes the millions of victims of the racist criminal "injustice" system.